Citation Nr: 0815317
Decision Date: 05/09/08 Archive Date: 05/14/08
DOCKET NO. 05-08 933 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for prostate cancer,
claimed as due to herbicide exposure.
2. Entitlement to service connection for peripheral
neuropathy, lower extremities, claimed as due to herbicide
exposure.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
M.W. Kreindler, Counsel
INTRODUCTION
The appellant served on active duty from September 1947 to
September 1951.
This matter comes to the Board of Veterans' Appeals (Board)
from a January 2005 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO). A notice of
disagreement was filed in February 2005, a statement of the
case was issued in March 2005, and a substantive appeal was
received in March 2005. A Board hearing was scheduled in
April 2008; however, the veteran failed to appear.
FINDINGS OF FACT
1. The appellant's civilian service in the Republic of
Vietnam from November 1967 to May 1968 does not qualify as
active military service.
2. Prostate cancer was not manifested during active military
service or many years thereafter, nor is prostate cancer
otherwise causally related to active service.
3. Peripheral neuropathy, lower extremities, was not
manifested during service or many years thereafter, nor is
peripheral neuropathy, lower extremities, otherwise causally
related to service.
CONCLUSIONS OF LAW
1. For the period November 1967 to May 1968, the appellant
did not have active military service for purposes of
eligibility for VA benefits. 38 U.S.C.A. § 101 (West 2002);
38 C.F.R. §§ 3.1, 3.7 (2007).
2. Prostate cancer was not incurred in or aggravated by
active military service. 38 U.S.C.A. §§ 1110, 1131, 5107
(West 2002); 38 C.F.R. § 3.303 (2007).
3. Peripheral neuropathy, lower extremities, was not
incurred in or aggravated by active military service. 38
U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Under the Veterans Claims Assistance Act of 2000 (VCAA),
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and
3.326(a), VA has a duty to notify the claimant of any
information and evidence needed to substantiate and complete
a claim, and of what part of that evidence is to be provided
by the claimant and what part VA will attempt to obtain for
the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002).
The United States Court of Appeals for Veteran Claims'
(Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412
(2004), held, in part, that a VCAA notice, as required by
38 U.S.C.A. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. This decision has since
been replaced by Pelegrini v. Principi, 18 Vet. App. 112
(2004), in which the Court continued to recognize that
typically a VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. In this case, VA satisfied its
duties to the appellant in a VCAA letter issued in September
2004. The letter predated the January 2005 rating decision.
See id. The VCAA letter notified the appellant of what
information and evidence is needed to substantiate his
claims, as well as what information and evidence must be
submitted by the claimant, what information and evidence will
be obtained by VA, and the need for the claimant to submit
any evidence in his possession that pertains to the claims.
Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004).
The September 2004 letter has clearly advised the appellant
of the evidence necessary to substantiate his claims.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; 3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess/Hartman, 19 Vet. App. at 486.
In the present appeal, the appellant was provided with notice
of what type of information and evidence was needed to
substantiate the claims of service connection, but there has
been no notice of the types of evidence necessary to
establish a disability rating or an effective date. Despite
the inadequate notice provided to the appellant, the Board
finds no prejudice to him in proceeding with the issuance of
a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394
(1993) (where the Board addresses a question that has not
been addressed by the agency of original jurisdiction, the
Board must consider whether the appellant has been prejudiced
thereby). The Board notes that the RO did furnish the
appellant a letter in September 2004 which advised him of the
evidence necessary to support his service connection claims.
Since the Board concludes below that the preponderance of the
evidence is against entitlement to service connection, any
questions as to the appropriate disability rating and
effective date to be assigned are rendered moot.
The Board also finds that VA has complied with all assistance
provisions of VCAA. The evidence of record contains the
appellant's service medical records from his period of active
service, documentation pertaining to his civilian service,
and post-service medical records. There is no indication of
relevant, outstanding records which would support the
appellant's claims. 38 U.S.C.A. § 5103A(c);
38 C.F.R. § 3.159(c)(1)-(3). It is noted that the RO did not
provide a VA examiner to review the claims file for a nexus
opinion for these service connection claims but such is not
required in order to make a final adjudication. McLendon v.
Nicholson, 20 Vet. App. 79 (2006), states, that in disability
compensation (service connection) claims, VA must provide a
medical examination [for a nexus opinion, as applicable] when
there is (1) competent evidence of a current disability or
persistent or recurrent symptoms of a disability, and (2)
evidence establishing that an event, injury, or disease
occurred in service or establishing certain diseases
manifesting during an applicable presumptive period for which
the claimant qualifies, and (3) an indication that the
disability or persistent or recurrent symptoms of a
disability may be associated with the veteran's service or
with another service-connected disability, but (4)
insufficient competent medical evidence on file for the VA to
make a decision on the claim. The standards of McLendon are
not met in this case. As will be discussed in detail below,
the appellant is not claiming that his prostate cancer and
peripheral neuropathy are due to his recognized period of
active service, and the evidence does not establish that the
appellant suffered "an event, injury or disease in
service," with regard to his claimed disabilities, so it is
not necessary to obtain a VA medical opinion with regard to
etiology. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
For all the foregoing reasons, the Board concludes that VA's
duties to the appellant have been fulfilled with respect to
the issues on appeal.
Criteria & Analysis
The appellant contends that service connection for prostate
cancer and peripheral neuropathy, lower extremities, is
warranted because he was exposed to Agent Orange as a
civilian employee between November 1967 to May 1968 in the
Republic of Vietnam, and this employment should be considered
active military service.
Documentation from the Department of the Army dated in June
1968 reflects that the services of the appellant to the US
Army Vietnam were greatly appreciated, and he was given a
Certificate of Achievement in recognition of his service.
The Certificate of Achievement was awarded to the veteran who
from the period November 5, 1969 to May 5, 1968, displayed
singular perseverance, fidelity and professional competence
while rendering meritorious service in support of the
counterinsurgency effort in the Republic of Vietnam. The
appellant contends that he worked in support of military
operations, doing retrograde work on Army equipment.
Although he admits he was a civil servant, he contends that
he wore a military uniform and was sent to Vietnam as a
member of the Army.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). If
chronicity in service is not established, a showing of
continuity of symptoms after discharge is required to support
the claim. 38 C.F.R. § 3.303(b). Service connection may
also be granted for any disease diagnosed after discharge
when all of the evidence establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Certain chronic diseases, including malignant tumors, which
become manifest to a compensable degree within the year after
service, will be presumed to have been incurred in service.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309. If a veteran was exposed to a herbicide agent during
active military, naval, or air service, prostate cancer and
acute and subacute peripheral neuropathy, shall be service
connected if the requirements of 38 U.S.C.A. § 1116, 38
C.F.R. § 3.307(a)(6)(iii) are met, even though there is no
record of such disease during service, provided further that
the rebuttable presumption provisions of 38 U.S.C.A. § 1113;
38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. §
3.309(e).
The governing law provides that a "veteran who, during
active military, naval, or air service, served in the
Republic of Vietnam during the period beginning on January 9,
1962, and ending on May 7, 1975 shall be presumed to have
been exposed during such service to an herbicide agent . . .
unless there is affirmative evidence to establish that the
veteran was not exposed to any such agent during that
service." 38 U.S.C.A. § 1116(f).
The term "active military, naval, or air service" includes
active duty, any period of active duty for training during
which the individual concerned was disabled or died from a
disease or injury incurred or aggravated in the line of duty,
and any period of inactive duty training during which the
individual concerned was disabled or died from an injury
incurred or aggravated in the line of duty. 38 U.S.C.A. §
101(24); 38 C.F.R. § 3.6.
38 C.F.R. § 3.7 provides for individuals and groups who are
considered to have performed active military, naval or air
service. But while the regulation does provide numerous
categories of service recognized as active duty, employment
in any civilian capacity for the period in which the
appellant was in Vietnam is not listed among those
categories. See 38 C.F.R. § 3.7.
In October of 2005, the Air Force determined that some
civilian employees of CAT, Inc. and Air America would not be
considered to have been on active duty status for purposes of
all laws administered by VA. However, they accepted a
request for reconsideration of this decision and solicited
information and documentation pertinent to the determination
of whether the civilian service of the particular groups set
forth below should be considered active military service for
VA purposes. The specific activities within this
reconsideration were the groups known as: (a) The U.S. and
Foreign Civilian Employees of CAT, Inc., Who Operated in
Korea Under Operation Book Lift During 1950 and 1951 and Any
Ground Support Personnel Necessary to Support That Mission;
(b) the U.S. and Foreign Civilian Employees of CAT, Inc., Who
Operated Air Force C-119 Aircraft to Drop Ammunition and
Other Supplies to French Troops at Dien Bien Phu in 1954 and
Any Ground Support Personnel Necessary to Support that
Mission; (c) the U.S. and Foreign Civilian Employees of CAT,
Inc., Who Operated B-26 Aircraft in Indonesia From 1958
Through 1962, and Any Ground Support Personnel Who Supported
That Mission; (d) the U.S. and Foreign Civilian Employees of
Air America, Inc., who Operated Fixed Wing or Helicopter
Aircraft in Support of U.S. Army Special Forces in Laos as
Part of Operation Hot Foot and Operation White Star From 1959
Through 1962, and in Support of Operation Mill Pond, the
Airlift from Thailand to Tibet, and Any Ground Support
Personnel Necessary to Support Those Missions; (e) the U.S.
and Foreign Civilian Employees of Air America, Inc., Who
Operated Fixed Wing or Helicopter Aircraft in Direct Support
of the U.S. Air Force Operating in Laos in the Steve Canyon
Program (Ravens), the Site 85 Operation, Photo
Reconnaissance, the Harp Program, and Search and Rescue (SAR)
Operations for U.S. Military Flight Crews from 1964 Through
1974, and Any In-Country Ground Support Personnel, Who Were
Necessary to Support Those Missions and Held Supervisory
Positions; and, (f) the U.S. and Foreign Civilian Employees
of Air America, Inc., Who Operated Fixed Wing or Helicopter
Aircraft in Vietnam in Direct Support of the U.S. Army
Special Forces from 1964 through 1975, and Any In-Country
Ground Support Personnel, Who Were Necessary to Support those
Missions and Held Supervisory Positions.
The only group in which the appellant may have been a member
was (f), pertaining to employees of Air America who were in
Vietnam from 1964 through 1975. The appellant has not
provided sufficient documentation to confirm whether he was a
civilian employee of Air America, Inc. However, even if the
appellant was an employee of Air America during that time
period, in May 2007 the Air Force determined that the groups
listed hereinabove, to include 'the U.S. and Foreign Civilian
Employees of Air America, Inc., Who Operated Fixed Wing or
Helicopter Aircraft in Vietnam in Direct Support of the U.S.
Army Special Forces from 1964 through 1975, and Any In-
Country Ground Support Personnel, Who Were Necessary to
Support those Missions and Held Supervisory Positions' shall
not be considered active duty for purposes of all laws
administered by VA. Thus, regrettably, the veteran's
employment as a civil servant in Vietnam from 1967 to 1968
cannot be considered active military service for VA benefits
purposes. The Board is obligated to follow the applicable
statutes and regulations. 38 U.S.C.A. § 7104(c).
Consequently, the veteran's claim of service connection for
prostate cancer and peripheral neuropathy based on exposure
to herbicides during this period of civilian employment is
not warranted.
The appellant has not claimed entitlement to service
connection for prostate cancer and peripheral neuropathy due
to his period of active service from September 1947 to
September 1951; however, the Board has considered whether
service connection would be warranted for such disabilities
due to such period of service. The Board has carefully
reviewed the evidence of record and finds that the
preponderance of the evidence is against the grant of service
connection for prostate cancer and peripheral neuropathy on a
direct basis due to his period of active service. The
veteran does not contend, nor does the evidence show, that he
was exposed to herbicides during his period of active service
from September 1947 to September 1951. The diagnoses of
prostate cancer and peripheral neuropathy were diagnosed
decades after separation from service. There has been no
showing that such disabilities are related to his period of
active service. Moreover, no competent medical professional
has attributed the post-service diagnoses of prostate cancer
and peripheral neuropathy to his active service.
Accordingly, for the reasons stated above, the Board finds
that the preponderance of the evidence is against the claims
of service connection for prostate cancer and peripheral
neuropathy, including as a result of exposure to herbicides.
ORDER
The appeal is denied.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs